Himachal Pradesh High Court
State Of Himachal Pradesh vs Jiwan Lal Tandel on 4 January, 2024
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P.(M). No.2830 of 2023.
.
Date of decision: 04.01.2024.
State of Himachal Pradesh .....Applicant/Appellant.
Versus
Jiwan Lal Tandel .....Respondent.
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Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
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Whether approved for reporting?1 No
For the Appellant : Mr. I.N. Mehta, Senior Additional
Advocate General with Mr. Navlesh
Verma, Ms. Sharmila Patial,
Additional Advocate Generals and
Mr. J.S.Guleria, Deputy Advocate
General.
For the Respondent : Nemo
Tarlok Singh Chauhan, Judge (Oral)
Aggrieved by the acquittal of the respondent for the
offences punishable under Section 376 of the Indian Penal Code (for
short 'IPC') and Sections 4, 6, 7, 8, 11 and 12 of the Protection of
Children from Sexual Offences Act, 2012 (for short 'POCSO Act'),
the State has filed the instant application for grant of leave to
appeal.
2. The case of the prosecution is that on 09.07.2018, Smt.
Sunita, wife of Shri Karan Sahi, mother of the child-victim, got her
statement recorded before the police stating therein that they were
doing the drain work of the road under the Contractor Sandeep
Whether the reporters of the local papers may be allowed to see the Judgment?Yes
Kumar and while at work, she was keeping the children in a rented
accommodation taken from one Sashni.
.
3. On 08.07.2018, at about 8.00 a.m., as usual, she along
with her husband, had gone for labour work, while, their children
were there in the rented room. At about 6.30 p.m., when she
returned to her home, the child-victim disclosed to her that uncle
of
Jiwan Lal (respondent), who was wearing a cap on his head, took
her to the jungle and there he gave apples to eat to her and showed
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porn films/movies to her on his mobile. Thereafter, the respondent
took off his 'pants' and removed 'pajama' of the child-victim. Then,
the respondent took the child-victim on his lap and placed his penis
on her private part and took out the white discharge from his penis
and, thereafter, the respondent left the spot. At that time, her
husband was in the bazaar. She called her husband through mobile
and he reached in the room after about half an hour.
4. On 09.07.2018, at about 7.30 p.m., they disclosed the
matter to the contractor Sandeep Kumar and on his advice, she
along with her husband and child-victim proceeded to lodge a report
at Police Post, Patli Kuhal. However, in the meantime, at 16 Miles
near Rain Shelter, S.I. Daya Ram met them. On the basis of the
statement of the complainant, an FIR for the commission of the
aforesaid offences was registered at Police Station, Manali. During
investigation, the statements of the witnesses under Section 161
Cr.P.C. were recorded and thereafter the victim-child was got
medically examined and her MLC was obtained. The victim-girl was
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sent to the Medical Officer for determining her age and opinion of
the Medical Officer to this effect was also obtained which revealed
that the estimated age of the victim was 4 to 6 years.
5. On 09.07.2018, the respondent was interrogated and
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arrested for the commission of the aforesaid offences. During police
custody, the respondent produced his cell phone along with JIO SIM
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which was taken into possession. The respondent got the spot
identified where he had shown obscene films to the child-victim and
sexually assaulted her. The respondent was got medically examined
and his MLC was also obtained. The I.O. visited the spot and
prepared the spot map. The preservatives taken by the doctors
were sent for analysis to R.F.S.L., Mandi. The statements of the
child-victim and complainant were got recorded before the learned
J.M.F.C., Manali on 10.07.2018.
6. After completion of the investigation, the challan as well
as supplementary challan were prepared and presented in the
Court. The copies of the challans were supplied to the respondent.
7. On finding a prima facie case for the offences
punishable under Sections 4, 6, 7, 8 and 11 of the POCSO Act,
charges were framed against the respondent to which he pleaded
not guilty and claimed trial.
8. The prosecution examined as many as 14 witnesses.
Thereafter, the statement of the respondent under Section 313
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Cr.P.C. was recorded wherein he pleaded his innocence by stating
that he has been falsely implicated in the case. An opportunity was
afforded to the respondent to lead evidence, however, no evidence
was led by the respondent in his defence.
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9. The learned Special Judge after recording evidence and
evaluating the same acquitted the respondent constraining the State
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to file application for grant of leave to appeal.
10. According to Mr. Navlesh Verma, learned Additional
Advocate General, the findings recorded by the learned Special
Judge are contrary and perverse and, therefore, deserve to be set
aside and consequently leave to appeal deserves to be granted in
this case.
11. We find no merit in the said submission for the simple
reason that it is an admitted case of the prosecution that neither
complainant/child victim has appeared in the witness box to
substantiate the allegations levelled by her against the respondent
nor her parents have testified in the Court. No doubt, the contractor
Sandeep Kumar appeared as PW-2, but then no reliance can be
placed on his testimony as he is not an eye-witness and his
testimony is based on hearsay. Likewise, for the same reason, no
reliance can be placed on the testimony of Hardev (PW-7) the
Contractor as his statement is also based on hearsay.
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12. Now, what remains is the scientific evidence led by the
prosecution. PW-1, doctor Deki Palmo Bodh, who conducted the
medical examination of the child-victim on 09.07.2018 at about
12.25 p.m. in the Civil Hospital, Manali, found no marks of injury on
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the body of the child-victim and her general condition was good. On
local examination, no pain and tenderness were found around
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vagina. Seminal stains were not seen. Per vaginal examination,
labia majora and labia minora were normal. Vagina admitted tip of
little finger and finger nail scratches were not found. No signs of
resistance were found and no damage to clothes was noticed.
According to PW-1, she advised the child-victim for X-ray of wrist
with hand AP view, X-ray right shoulder, X-ray right elbow, A.P.and
lateral view, X-ray knee A.P. view, X-ray ankle with foot A.P. View
and X-ray pelvis with A.P. view. X-rays were sent to Radiologist for
examination and report. On examination of X-rays and as per the
ossification status of child-victim, the estimated age was between 4
to 6 years and the dental age was estimated to be six years
approximately and she gave her report which is Ext. PW-1/B within
red circle. On the request of the police, PW-1 had drawn the
following samples and handed over the same to the police after
sealing:-
1. Three swabs(vaginal) kept in tube;
2. Nail clipping;
3. Green coloured lower;
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4. Blood on FTA Cards;
5. A letter addressed to RFSL regarding forensic
examination.
Thereafter, PW-1 referred the child-victim to the Dental Surgeon for
age estimation. She issued MLC Ext. PW-1/A. During cross-
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examination, she admitted that if rape is committed on a girl of
tender age, then it is expected that there would be wide spread
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damages on the private part.
13. Now, in case the medical evidence is perused, it would
be noticed that in absence of testimony of the child-victim, the
evidence leads nowhere as it does not in any manner establish the
offences for which the respondent has been charged. Even, as per
the R.F.S.L. report Ext. P-3/PW-14, blood and semen were not
detected on lower, vaginal swab, nail clipping of the victim,
underwear, coronal sulcus swab and pubic hair of the respondent.
These reports themselves cannot be held to be sufficient to prove
the allegations of sexual assault on the child.
14. In Chandrappa and others vs. State of Karnataka
(2007) 4 SCC 415, State of Rajasthan vs. Kistoora Ram, 2022
SCC Online SC 984 and Ravi Sharma vs. State (Government of
NCT of Delhi) and another (2022) 8 SCC 536, the Hon'ble
Supreme Court has provided a clear exposition as to scope of
interference in an appeal against acquittal. The same has been held
to be limited. As per the aforesaid exposition, unless it is found that
the view taken by the trial Court is impossible or perverse, it is not
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permissible for the Appellate Court to interfere with the findings of
acquittal. It has also been held that if two views are possible, it is not
permissible to set-aside an order of acquittal merely because the
Appellate Court finds the way of conviction to be more probable.
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15. It is more than settled that in an appeal against
acquittal, no interference is called for in case the view taken by
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learned trial Court is a possible one and its findings do not suffer
from perversity. The accused always has a benefit of presumption of
being innocent till proof of charges against him beyond reasonable
doubt. The acquittal by the learned trial Court doubles the strength
of such presumption.
16. In the given facts and circumstances of the case, we
have no doubt in our mind that the view taken by the learned Special
Judge to acquit the respondent is a plausible and a possible view
and, therefore, warrants no interference. Accordingly, leave to
appeal is rejected.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
Judge
4th January, 2024.
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